Reed Smith Client Alerts

On January 6, 2022, the Florida Supreme Court expanded the list of nonfinal orders subject to immediate interlocutory appeal to include the review of orders permitting or denying leave to amend to assert a claim for punitive damages. This amendment to Florida Rule of Appellate Procedure 9.130 is a significant win for the defense bar, which now has a new tool to attack punitive damages before trial. See In re Amendment to Fla. Rule of App. Proc. 9.130, No. SC21-129, 2022 Fla. LEXIS 34, at *2 (Jan. 6, 2022).

Under the Florida Rules of Civil Procedure, punitive damages cannot be alleged in a complaint without leave of court. A party is required to move for leave to amend to allege punitive damages, and must proffer an evidentiary record to support the basis for such damages. See Fla. R. Civ. P. 1.190(f) (“A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.”).

If a plaintiff’s motion for leave is granted, the discovery gates are opened to an even wider scope that without the amendment would be off limits, entitling them to discovery of a defendant’s net worth, for example. And, defendants would be forced to defend against punitive damages all the way through trial, facing a potentially hefty verdict, before being able to exercise any appellate rights of review.

This new appellate rule change provides defendants greater leverage in a number of ways:

  • Defendants can shut down potentially harassing financial discovery by seeking immediate appellate review.
  • Plaintiffs and trial court judges alike must study the evidentiary record closely to justify the assertion of punitive damages now that there is an immediate substantive review of the evidence on appeal, or risk reversal.
  • A pending appeal of an order on a motion for leave to amend can result in a continued trial, or even if not continued, the delay in entry of a final judgment; it also could result in a plaintiff abandoning a weak punitive damages case to get to trial faster.

The amendment goes into effect April 1, 2022. It should be noted, however, that this change has no effect on cases in federal courts in Florida. The Eleventh Circuit has held that Florida Rule of Civil Procedure 1.190(f) is procedural for purposes of Erie. See Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir. 2000).

Client Alert 2022-007